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Judge lifts injunction in hemp dispute on Pine Ridge Reservation

Tuesday, March 29, 2016

Alex White Plume is a former president and vice president of the Oglala Sioux Tribe. Photo from The Flying Cloud Eco-DiscoveryTour

Citing changes in the legal landscape, a federal judge on Monday opened the door for the cultivation of hemp on the Pine Ridge Reservation in South Dakota.

As an exercise in sovereignty, the Oglala Sioux Tribe legalized hemp nearly two decades ago but federal authorities repeatedly destroyed crops planted by Alex White Plume even though they posed no health or safety risks. They later secured an injunction -- believed to be the only one of its kind in the nation -- that prevented him from from growing more plants.

But in a 17-page decision, Chief Judge Jeffrey L. Viken said new circumstances required him to take another look at the situation. He pointed to two Department of Justice policies, including one directed solely at Indian Country, changes in federal law and ongoing debates at the state level as grounds for lifting the injunction against White Plume

"What is material to the court’s analysis is the shifting national focus on industrial hemp as a viable agricultural crop and the decision of the Attorney General of the United States to engage in a dialogue with the various tribes," Viken wrote.

Viken, though, warned that the decision does not authorize White Plume to start growing hemp again. Further proceedings would determine whether he has a right to cultivate the crop in a manner similar to states that have legalized the plant. Some treaty-based arguments might also be considered as the case moves forward.

But Tim Purdon, a former U.S. Attorney from neighboring North Dakota, hailed the ruling as a "victory for Alex, but also for tribal sovereignty." He took on the case after leaving the Obama administration a little over a year ago.

"This order brings some justice to Native America’s first modern day hemp farmer," said Purdon, who now works in private practice. "For over 10 years, Alex White Plume has been subject to a one-of-a-kind injunction which prevented him from farming hemp. The 2014 Farm Bill changed the hemp farming laws for all Americans, but it took this order to put hemp pioneer Alex White Plume on equal footing.”

The 2014 Farm Bill includes a provision that allows higher education institutions and state agricultural agencies to grow hemp if the plant is legalized by the state. South Dakota is almost there, Viken noted in his ruling.

But even if South Dakota doesn't get there, Purdon argues that the same policy should be extended to Indian Country. The so-called 2014 Wilkinson memo appeared to lay the groundwork for governmental parity but instead the Obama administration has been fighting White Plume.

"We continue to urge DOJ to allow America’s sovereign tribes to explore Industrial Hemp farming under the 2014 Farm Bill in the same way the states have been allowed to," Purdon said.

The College of the Menominee Nation in Keshena, Wisconsin. Photo from Facebook

White Plume isn't alone in his struggle. Last October, federal authorities destroyed hemp crops on the Menominee Nation in Wisconsin after the tribe's higher education institution, the College of the Menominee Nation, started cultivating the plant.

The Menominee Nation is also a client of Purdon's and the tribe has made similar governmental parity arguments in a lawsuit against the Drug Enforcement Agency. A decision hasn't been issued but success in either or both cases could bring clarity to Indian Country.

While a number of tribes have expressed interest in hemp and marijuana, instability on the federal level has kept them from exploring new economic development avenues. In addition to the Menominee Nation, two tribes in California were raided for growing marijuana and another in South Dakota destroyed its marijuana crops, citing fear of an imminent raid.

The Oglala Sioux Tribe has cited economic development as one of the reasons for legalizing hemp. But White Plume, a former president and vice president of the tribe, and other leaders have outlined more practical concerns as well: some people at Pine Ridge have used a product called hempcrete to build houses on a reservation known for inadequate and overcrowded housing.

The plant also can be used in food, clothing and other items.

"The people used to have the buffalo for our food, clothing and shelter," Joe American Horse, another former president, at the planting of hemp seeds in April 2000, on the 132nd anniversary of the 1868 Treaty of Fort Laramie. "Now, hemp can do that for us."

Hemp and marijuana are closely related but hemp does not carry the same drug-inducing characteristics as marijuana. Testing and cultivation can ensure low levels of tetrahydrocannabinol, or THC, in hemp crops.

Relevant Documents:
Department of Justice Policy Statement Regarding Marijuana Issues in Indian Country (October 2014)